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Surrogacy Law in Ohio

Laws on the books in Ohio relating to surrogacy are unsettled. However, different court decisions seemed to suggest that some surrogacy contracts were not lawful.


Explanation: Ohio laws on the books talking about artificial insemination don’t deal with surrogate motherhood. Even though there is a lot of case law on the books about surrogacy, the state has not definitively dealt with the issue.

There was a case in 1992 where an Ohio Appeals Court didn’t give custody to the intended mother in a traditional surrogacy contract (in which the surrogate mother was the egg’s biological contributor) because she didn’t have any biological link to the child and because the contract was just a verbal agreement. The Court didn’t deal with how it would decided if the case had a written contract, but it did end up saying that surrogacy contracts’ legality in the state was not settled and still open to serious scrutiny.

Contributing a little bit of the genetic material can strengthen a couple’s case if they bring it in the state of Ohio in a surrogacy arrangement. There was a case in 1994 where a lower court in Ohio said that the intended parents in a gestational surrogacy arrangement (where the surrogate mother isn’t the egg’s biological contributor) were the legal and natural parents of the upcoming child. However, the court said that as a matter of the state’s public policy, the state wouldn’t encourage or enforce private contracts or let someone give up their parental rights. The decision came from a lower court, however, and the language wouldn’t be binding on other courts.

There was a Court of Appeals case in Ohio in 1999 where it was said that it was in the child’s best interests conceived with a traditional surrogacy contract to do genetic testing to decide who the parents were. A few couples had made a written contract under which one couple’s wife was to get inseminated with other couple’s husband then give up the child’s custody to the biological father and his wife once the child was born. The surrogate mother went back on the contract, and she invoked the state’s statute that established that a child who was born from artificial insemination to a woman who was married is the real child of her husband. The Court said that the statute looked at a procedure done by a physician using an anonymous sperm donor, and it didn’t apply to this case.

There was a case in 2001 where a man went through with an oral contract with his sister to carry his child, and that of his same-sex partner’s too. The sister got inseminated from an anonymous donor, but she started to have doubts during the pregnancy about the contract. The Court said that the surrogate was the child’s legal mother for the following list of reasons: (1) the child didn’t have any biological connection to the couple; (2) there wasn’t any written contract or certification of the verbal agreement by a court or family agency; and (3) biological parents only get their custody taken away in the case of abandonment, total inability to give support or care to the child, or valid contractual custody relinquishment. The Court said that even if a decision is made that a biological parent has given up his or her rights or that custody would be harmful to the child, the burden would still be on the party who is trying to get parental rights to show proof, by enough evidence, that it would not be suitable to give custody to the true parent. The Court even said it was possible for a parent to give up their parental rights contractually and still get custody again based inability of the non-parent to show unsuitability. However, the court didn’t find anywhere in the decision about the sexual orientation. In fact, the opinion of the judge lays out how the partner of the brother might have tried to adopt the child if the surrogacy contract had been real. So, it seems that same-sex couples’ potential in Ohio to use surrogacy contracts exists, as long as the contracts are entered into in a legal way.

There was a case in 2007 at the Ohio Supreme Court level that said that a certain gestational surrogacy agreement in question didn’t go against public policy, even when it proscribed the gestational surrogate from talking about her parental rights. The Court said that the gestational surrogate didn’t have any claim to legal parentage when the agreement was formed, and so she didn’t have any parental rights she could assert at all.



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